Unless we heed Clarence Thomas’ warning, SCOTUS ‘travel ban’ victory is hollow

Daniel Horowitz · June 27, 2018  
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Justice Clarence Thomas

Our political system regards the Supreme Court as superior to the other two branches of government. Why then doesn’t the high court wield its supremacy over its own branch and rein in the lawlessness of the lower courts? Shouldn’t it uproot a growing power grab by the lower courts that are issuing nationwide injunctions over broad policies? Justice Thomas seems to think so.

In Thomas’ concurrence in the “travel ban” case, he spends just one paragraph dealing with the merits of the case. In the rest of his concurrence, he addresses the fact that in this case and in many other similar cases, lower courts have been abusing their power and applying their rulings beyond the subjects of the litigation. As long as the tens of thousands of immigration lawyers can continue to challenge any long-standing immigration policy before a carefully shopped district judge and immediately secure a nationwide injunction on that policy, the categorical ruling of the majority will have a limited effect.

Whether one agrees or disagrees with Trump’s immigration policies, it is still absurd and dangerous that a district judge was able to shut down a president’s policy and even force him to alter it dramatically, especially now that we know the Supreme Court agreed with the president all along. Now district judges are mandating that illegal DACA amnesty be administered nationwide. Are we going to allow national security, the military, and foreign policy to be run by a single forum-shopped district judge and hope that somehow the Supreme Court will step in within a few years, after all the harm is already done?

Thomas observed that sweeping universal injunctions applied beyond just the plaintiffs in the cases are becoming increasingly common. “These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”

Thomas began his concurrence by noting that absent statutory authority from Congress, lower courts have no power to issue universal injunctions. This is the extent of power Congress holds over the lower courts. And in fact, as Thomas observed in a footnote, even if Congress granted them such authority, “courts would need to consider whether that statute complies with the limits that Article III places on the authority of federal courts.”

The lower courts acknowledge no such boundaries on their powers. But Thomas makes an important point. Allowing lower court judges to issue blanket policy prescriptions transforms their role from granting equitable relief in a legitimate case or controversy to a legislative and executive authority with the power to issue blanket mandates and vetoes on broad policies.  Thomas noted that until recently, the judiciary rightfully viewed its role as the power “to render judgments in individual cases” and “did not believe that courts could make federal policy, and they did not view judicial review in terms of ‘striking down’ laws or regulations.”

Thomas concluded that “universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

That time is now, and the other justices should have joined him. John Roberts, at the very end of the majority opinion, asserted that his “disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court.” That might be true in order to reach the decision in this case, but as the head of the supreme body of the judiciary, he has an obligation to rebuke the lower courts when they overstep their bounds.

As if on cue, on the very same day, sixteen states and the District of Columbia sued the president for his border security policies. They have forum-shopped their case not to a border judge or the D.C. federal district court, but to the Western District of Washington, knowing that a district judge can shut down national border policy and that they will automatically win the appeal in the Ninth Circuit.

It also doesn’t help that the Supreme Court is continuing to allow foreign nationals to get standing in court to sue for rights they don’t have. Now, illegal aliens are suing against separation when they are the ones breaking into our country and always have the option to voluntarily depart with their kids. Yet they are demanding the right to litigate for legal status while being released. On the very same day the Supreme Court ruled that Sec. 212(f) of the INA gives the president full power to block any form of immigration or place conditions on such immigration that he deems necessary, a California judge legislated that Trump must reunite all children with their parents within 14 days and set up regular phone calls.

The Supreme Court continues to turn a blind eye, even as it allows thousands of immigration lawsuits to mushroom. Activist lawyers lodge hundreds of illegitimate lawsuits against the most basic acts of sovereignty, allowing the most liberal judges to destroy our national security for years until the Supreme Court finally deals with it. The period of 16 months that it took to get a favorable ruling from SCOTUs on this executive order was actually relatively short. Our republic cannot last much longer against death by a thousand lawsuits, using a power that is manifestly nonexistent. Trump needs to take the win at the Supreme Court to the next level and refuse to empower lower courts in their overt lawlessness.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.